A few weeks ago, our blog reported on a number of complaints filed against some of the most recognizable fast food chains, over alleged food packaging containing PFAS. The alleged concern is that PFAS contained in the packaging, for example, will migrate into the food itself, creating exposure through consumption of the food. Now a fast food chain named in one of the lawsuits is fighting back. A few days ago, the chain filed a motion to dismiss the proposed class action, presenting a number of arguments, including lack of standing for not alleging concrete and specific injury, federal preemption and the insufficient pleadings under the federal rule of civil law. Procedure 9(b).
In a nutshell, the complaint alleges false advertising because the fast food chain’s packaging contains one or more unspecified PFAS substances, which, as our readers know, can be any of thousands of chemical compounds. The defendant’s motion argues that the plaintiffs lack standing because they allege only “hypothetical economic harm,” not actual harm. The plaintiffs claim to have “suffered economic harm as a result of the purchase” of the food and its packaging. Complaint at ¶ 144. The only damages apparently claimed by the plaintiffs are that the “products are worth nothing or less than the purchase price” because the presence of PFAS – believed to be both in the packaging and in food – was not disclosed. Complaint at ¶ 26. Essentially, the plaintiffs claim that they would have paid less or nothing for the products if they had known that the packaging contained PFAS substances.
But the defendant argues that the plaintiffs purchased and consumed the menu items, alleged no physical injury, and “did not allege that they expected to know if the PFAS was in the package when they made their alleged purchases, nor that they had ever seen any [of the food chain’s] marketing stating or implying that the products were PFAS-free (because neither the packaging nor the marketing say such a thing). the defendants then argue that it is “implausible” that the plaintiffs purchased the products based on an understanding of the absence of FDA-approved organic fluorinated substances in the packaging.
The complaint cites a third-party consumer defense article that the complainants allegedly reviewed that apparently caused buyer remorse after purchasing the products. But the defendants note that the “apparent alarm after reading” such a report, without any real injury, “falls[s] unless he establishes a personal interest in this litigation.
Further, the motion is intended to underscore the fragile nature of the basis of the lawsuit. In particular, the complainants did not carry out any tests themselves to confirm the type of PFAS in the packaging, and the complainants do not refer to any tests showing the presence of PFAS in the actual food. It appears that the plaintiffs are simply alleging that two studies have found “organic fluoride” in food chain packaging and that there is a “likelihood” that PFAS in packaging will “migrate into food” based, in part, studies on other foods, and other packaging.
On the preemption, the defendant points to several regulations that have approved specific PFASs for food contact. Citing, for example, 21 CFR § 177.1550, 21 CFR § 176.170, 21 CFR § 175.300. The food chain argues that the PFAS substances currently used in its packaging are also specifically FDA-approved. The defendant also presents insufficient argument under FRCP 9(b), which requires that “fraudulently appearing” allegations be specifically stated. Defendants note that “because not all PFAS are the same”, generic claims regarding PFAS – a group of thousands of compounds – do not meet the enhanced pleading standard under Rule 9(b).
We’ll be keeping an eye on this case in the future as it looks like other cases based on food packaging are in the works.